Dismissed

State of Kerala, v. K.G.Ashokan

Kerala HC16 Mar 2022WA/1762/2019

Case brief

AI extract

What is this about?

This dismisses an appeal against a single judge's order setting aside the forfeiture of rental due to alleged violation of purchase limits. The bench held that buying three groups violated a specific condition but did not amount to suppressing eligibility facts requiring license cancellation under Rule 5(17).

What did the court decide?

The writ appeal is dismissed. No costs. All pending interlocutory applications are disposed of.

State of Kerala, Vs K.G.Ashokan — Labour and Industrial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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WEDNESDAY, THE 16^TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

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WA NO. 1762 OF 2019

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AGAINST THE JUDGMENT DTD 18/03/2019 IN WP(C) 7527/2015 OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS IN WP(C):

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1 STATE OF KERALA,

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REPRESENTED BY THE SECRETARY, TAXES (G) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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2 THE COMMISSIONER OF EXCISE, EXCISE BHAVAN, THIRUVANANTHAPURAM - 695001.

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BY SENIOR GOVERNMENT PLEADER SHRI.V.K.SUNIL

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RESPONDENT/PETITIONER IN WP(C):

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K.G.ASHOKAN,

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S/O.GOPALAN, KUTTICHIRAYIL, KANNANKARA P.O., THANEERMUKKAM, CHERTHALA TALUK, ALAPPUZHA DISTRICT- 688527.

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BY ADVS. SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SRI.K.RAMAKUMAR (SR.)

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THIS WRIT APPEAL HAVING COME UP FOR HEARING ON 07.03.2022, THE COURT ON 16.03.2022 DELIVERED THE FOLLOWING:

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W.A.No.1762 of 2019

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P.B.SURESH KUMAR & C.S.SUDHA, JJ.

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W.A.No.1762 of 2019

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Dated this the 16^th day of March, 2022

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J U D G M E N T

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C.S.Sudha, J.

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This writ appeal is against the judgment dated 18/03/2019 in W.P.(C)No.7527/2015. The appellants herein are the respondents in the writ petition and the respondent herein is the petitioner in the writ petition. The parties in this writ appeal will be referred to as described in the writ petition.

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The writ petition was filed challenging Ext.P5 order dated 20/02/2015 issued by the second respondent, by which the right to conduct sale of toddy for Toddy Shop, Group No.I in Pala Range provisionally sold to the petitioner, was cancelled and the annual rent of `2,98,650/- remitted by the petitioner to the Government was forfeited as provided under Rule 5(17) for violation of the 2^nd proviso to Rule 5(1)(b) of the Kerala Abkari Shops Disposal Rules, 2002 (the Rules). The learned

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W.A.No.1762 of 2019

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single Judge found no suppression of facts or production of fake documents by the petitioner as contemplated under Rule 5(17) and hence Ext.P5 order

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was set aside. Aggrieved, the respondents have come up in appeal.

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Heard Sri.V.K.Sunil, the learned Senior Government

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Pleader for the appellants and Sri.S.M.Prasanth, the learned counsel for the respondent.

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Rule 5 deals with the grant of privilege of vending toddy

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which is subject to the conditions stipulated in clauses (a) and (b) of subrule (1) along with the provisos attached to it. The second proviso to clause (b) of sub rule (1) says that no person shall be allowed to purchase more than two groups of toddy shops. Sub rule (3) to Rule (5) deals with the eligibility conditions of an applicant. The eligibility is subject to the conditions contained in clauses (i) to (vi) of sub rule (3). Sub rule (17) to Rule 5 reads -

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“(17) If it is found at any stage that any purchaser of privilege had suppressed facts in his application as to his eligibility or produced fake documents and obtained the privilege declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid by him towards the annual rental of the group range, shall be

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W.A.No.1762 of 2019

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forfeited to Government and the group range resold or otherwise disposed of.”

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Therefore, only if the bidder suppresses facts in his application relating to his eligibility or produces fake documents, on the basis of which he obtains

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the privilege of vending toddy, his license is liable to be cancelled and the deposit forfeited.

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As seen earlier, the eligibility conditions of a

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bidder/purchaser is contained in sub rule (3). The respondents have no case that any of the conditions in sub rule (3), that is, clauses (i) to (vi), has been violated by the petitioner. On the other hand, the case of the respondents is that the petitioner had already purchased two groups of toddy shops, that is, he was the licensee of TS Group no.IX in Kuravilangad range and one of the purchasers of TS Group no.V in Kottayam range, when he applied for the purchase of TS group no.1 in Pala range. The application for Pala group was the third one. This was noticed by the Circle Inspector of Excise, Pala, while preparing the sale list. This fact when verified by the Circle Inspector of Excise, Kottayam was found to be true.

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In the appeal memorandum, it is alleged that the stand

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W.A.No.1762 of 2019

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of the petitioner that he was unaware of the position that a person is not entitled to purchase more than two groups of toddy shops, is incorrect and false because on 03/06/2014, before the auction commenced, the eligibility and criteria for the participants was read out at the venue where the participants including the petitioner herein had assembled for participating in the auction. It was only thereafter the participants had filled out their application forms and submitted them. The petitioner had participated in the auction, knowing fully well that he was not eligible to participate in the auction as he was already holding the privilege to vend toddy for two groups of toddy shops, that is, Kottayam as well as Kuravilangad range. The application submitted for Pala range was the third one and therefore it was in clear violation of the 2^nd proviso to Rule 5(1)(b) of the Rules, contend the respondents.

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The respondents have produced the copy of the three applications submitted by the petitioner. As per the first application dated 04/03/2014, the petitioner is seen to have applied for TS no.45 to 49, Group no. IX, Kuravilangad range. Column 12 of this application which requires

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information as to whether the applicant had purchased the privilege of

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W.A.No.1762 of 2019

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vending toddy, is seen left blank. The application for purchase of TS no.25 to 30, Group V, Kottayam range dated 03/06/2014 is seen submitted by the petitioner along with another person. In Column no.12 of this application, in which application the petitioner is applicant no.2, it is stated that he is the licensee of Group IX, Kuravilangad range. The third application dated 03/06/2014 is for TS no.1 to 5 in Group no. I of Pala range. In Column No.12 of this application, the petitioner has stated that he is the licensee of Group IX of Kuravilangad range.

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It is true that as per the second proviso to clause (b) to sub rule (1) of Rule 5, the petitioner is not entitled to purchase more than two groups of toddy shops. When he submitted his application for Pala range, he had already obtained the privilege for vending toddy in Kuravilangad and Kottayam ranges. The petitioner contends that when he realised this mistake, he immediately gave Ext.P2 request for cancelling his auction relating to Group no. 5 of Kottayam range and to finalise his auction relating to Group no.1 of Pala range. According to the learned single Judge, Ext.P2 would show the bona fides of the petitioner. It is true

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that as per the second proviso to clause (b) of sub rule (1), the petitioner

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ought not to have bid for more than two groups of toddy shops. However,

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that infraction would not amount to suppression of facts in his application

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relating to his eligibility. Rule 5(3) dealing with eligibility reads-

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“(3) No applicant is eligible for the privilege of any group range if he:

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(i) is charged with an offence relating to illicit liquor or prosecution proceedings are pending against such applicant before a court of law; (ii) is Convicted under any Abkari offence or any other Criminal Offence and sentenced to imprisonment for more than three years after 1st April, 1992;

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(iii) is a defaulter of Abkari arrears, Sales Tax arrears or any other arrears due to the Kerala Toddy workers Welfare Fund or the Kerala Abkari Workers Welfare Fund unless he produces from the Circle Inspector of Excise, Sales Tax Officer, the Authority of the said Welfare Fund Board or any other officer authorised in this behalf as the case may be a certificate to the effect that no dues are outstanding against him or that he has remitted before the date of sale of group range 50% of the arrears pending against him as on the date of sale notification;

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(iv) is liable to pay contribution to the Toddy Workers Welfare Fund and/or the Kerala Abkari Welfare Fund as the case may be unless he produces from the Welfare Fund Inspector concerned a certificate to the effect that he has remitted before the date of sale of group range the arrears of contributions payable up to the 31st day of December

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of the preceding year.

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(v) is a public servant in the service of Government.

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(vi) is below 18 years of age; (vii) Omitted by SRO No.366/2003 pub. in GO (P)No.73/2003/TD dt. 29-4-2003”

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None of the aforesaid sub clauses has been violate d by the petitioner. The respondents have no such case also. Clause (vii) which has been omitted,

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reads- “has already been granted with the privilege of another toddy shop in the State in the Abkari year in question.”

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Rule 5(17) initially read -

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“(17) If it is found at any stage that any purchaser of privilege had

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suppressed facts in his application as to his eligibility including preference or produced fake documents and obtained the privilege

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declared or confirmed in his name or obtained any licence granted in his name, the licence issued to him, if any, will be cancelled and the whole of the amount paid by him towards the annual rental of the shop, shall be forfeited to Government and the shop resold or otherwise disposed of.”

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The words “including preference” was omitted by SRO No.346/2003 published in GO(P) No.68/2003/TD dated 23/04/2003. Initially a person

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granted with the privilege of a toddy shop in the State, was ineligible under

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sub rule (3) to bid for the purchase of another one. This clause was omitted in the year 2003. The second proviso to clause (b) to sub rule (1) of Rule 5 was inserted with effect from 01/04/2008. This condition that no person shall be allowed to purchase more than two groups of shops, when inserted was brought under sub rule (1) (a) dealing with the order of preference to be granted to licensees. Clause (b) says that the privilege in sub rule (1)(a) shall be confined to the range of shops in which the licensee’s shop falls. It is, as a proviso to clause (b) the condition that no person shall purchase more than two groups of toddy shops has been brought in by way of insertion in 2008. Therefore, the intention of the Legislature is quite clear.

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Had it intended the condition in the 2^nd proviso to clause (b) to Rule 5(1)(b)

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to be treated as an eligibility clause, the insertion would have been as clause(vii) to rule 5(3) which initially had a similar provision, but had been omitted in the year 2008.

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In these circumstances, we find that the petitioner has not suppressed any facts relating to his eligibility as provided under Rule 5(3) to warrant a cancellation of his license or forfeiture of his deposit as contemplated under Rule 5(17). We find no infirmity in the judgment of the

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W.A.No.1762 of 2019

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learned Judge calling for an interference in this appeal.

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In the result, the appeal is dismissed. No costs.

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All interlocutory applications, pending if any, shall stand disposed of.

Sd/-

P.B. SURESH KUMAR

JUDGE

Sd/-

C.S. SUDHA JUDGE

ami/

State of Kerala, v. K.G.Ashokan

Case brief

What is this about?

What did the court decide?

State of Kerala, v. K.G.Ashokan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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